Exhibit 1.1
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CIBER, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
Dated: _________ __, 1998
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TABLE OF CONTENTS
REGISTRATION AGREEMENT
SECTION 1. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . 3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY.. . . . . . . . 3
(i) Compliance with Registration Requirements . . . . . 3
(ii) Accuracy of Exhibits. . . . . . . . . . . . . . . . 4
(iii) Incorporated Documents. . . . . . . . . . . . . . . 4
(v) Financial Statements. . . . . . . . . . . . . . . . 5
(vi) No Material Adverse Change in Business. . . . . . . 5
(vii) Good Standing of the Company. . . . . . . . . . . . 5
(viii) Good Standing of Subsidiaries . . . . . . . . . . . 5
(ix) Capitalization. . . . . . . . . . . . . . . . . . . 6
(x) Authorization of Agreement. . . . . . . . . . . . . 6
(xiv) Possession of Intellectual Property . . . . . . . . 7
(xvi) Title to Property . . . . . . . . . . . . . . . . . 8
(xvii) Investment Company Act. . . . . . . . . . . . . . . 8
(xviii) Registration Rights . . . . . . . . . . . . . . . . 8
(xix) Insurance . . . . . . . . . . . . . . . . . . . . . 8
(xx) Accounting Control. . . . . . . . . . . . . . . . . 8
(xxi) Taxes . . . . . . . . . . . . . . . . . . . . . . . 9
(b) OFFICER'S CERTIFICATES. . . . . . . . . . . . . . . . . . . . 9
SECTION 2. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . 9
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) FILING OF AMENDMENTS. . . . . . . . . . . . . . . . . . . . . 10
(c) DELIVERY OF CIBER REGISTRATION STATEMENTS . . . . . . . . . . 10
(d) DELIVERY OF CIBER PROSPECTUSES. . . . . . . . . . . . . . . . 10
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS . . . . . . . . . . 11
(f) BLUE SKY QUALIFICATIONS . . . . . . . . . . . . . . . . . . . 11
(g) RULE 158. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(i) REPORTING REQUIREMENTS. . . . . . . . . . . . . . . . . . . . 12
SECTION 3. PAYMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . 12
(a) EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) ALLOCATION OF EXPENSES.. . . . . . . . . . . . . . . . . 12
SECTION 4. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 12
(a) INDEMNIFICATION OF UNDERWRITER AND ML&CO. . . . . . . . . . . 12
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. . . . . . 14
(c) ACTIONS AGAINST PARTIES; NOTIFICATION . . . . . . . . . . . . 14
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. . . . . . 15
SECTION 5. CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9. PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 10. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 11. EFFECT OF HEADINGS . . . . . . . . . . . . . . . . . . . 17
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CIBER, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
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________ __, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
XXXXXXX XXXXX & CO., INC.
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CIBER, Inc., a Delaware corporation (the "Company"), confirms its agreement
with Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation ("ML&Co."), and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Underwriter"), in connection with the proposed issue and sale by ML&Co. to the
Underwriter pursuant to a purchase agreement, dated the date hereof (the
"Purchase Agreement"), among ML&Co., Xxxxx X. Xxxxxxxxx, individually and as
settlor, beneficiary and trustee of the trust made by Xxxxx X. Xxxxxxxxx as
settlor and trustee under the 1998 Revocable Trust Agreement dated January __,
1998 (the "Xxxxx X. Xxxxxxxxx 1998 Revocable Trust"), and the Underwriter, of an
aggregate of 1,750,000 of ML&Co.'s Structured Yield Product Exchangeable for
Stock -SM-, ___% STRYPES-SM- Due ________, 2001 (each, a "STRYPES"), payable
at maturity by delivery of shares of common stock, par value $.01 per share
(the "CIBER Common Stock"), of the Company and, at the option of the
Underwriter, all or any part of 262,500 additional STRYPES to cover
over-allotments, if any. The aforesaid 1,750,000 STRYPES (the "Initial
Securities") to be purchased by the Underwriter and all or any part of the
262,500 STRYPES subject to the
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-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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option described in Section 2(b) of the Purchase Agreement (the "Option
Securities") are hereinafter called, collectively, the "Securities." Xxxxx X.
Xxxxxxxxx, individually and as settlor, beneficiary and trustee of the Xxxxx X.
Xxxxxxxxx 1998 Revocable Trust, is hereinafter called the "Contracting
Stockholder." Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Purchase Agreement.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after this
Agreement and the Purchase Agreement have been executed and delivered. The
Company acknowledges that it has been advised that the execution and delivery of
this Agreement is a condition to the execution and delivery of the Purchase
Agreement by the Underwriter and ML&Co. and that, in consideration of the
execution and delivery of the Purchase Agreement by the Underwriter and ML&Co.,
the Company is willing to make the representations, warranties and covenants
herein contained.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-43857) covering the
registration of the shares of CIBER Common Stock deliverable upon payment and
discharge of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses. Each
prospectus used before such registration statement became effective, in each
case excluding any ML&Co. preliminary prospectus (as defined below) attached
thereto, is herein called a "CIBER preliminary prospectus." Such registration
statement, including the exhibits thereto, the schedules thereto, if any, and
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective, is herein called the "CIBER
Registration Statement." Any registration statement filed by the Company
pursuant to Rule 462(b) of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") is herein referred to as the "CIBER Rule
462(b) Registration Statement," and after such filing the term "CIBER
Registration Statement" shall include the CIBER Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, but
excluding any ML&Co. Prospectus (as defined below) attached thereto, in the form
first furnished to the Underwriter for use in connection with the offering of
the Securities is herein called the "CIBER Prospectus." For purposes of this
Agreement, all references to the CIBER Registration Statement, any CIBER
preliminary prospectus, the CIBER Prospectus or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
CIBER Registration Statement, any CIBER preliminary prospectus or the CIBER
Prospectus shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
CIBER Registration Statement, any CIBER preliminary prospectus or the CIBER
Prospectus, as the case may be, and shall be deemed to exclude all financial
statements and schedules and other information which are included or
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incorporated by reference in any ML&Co. preliminary prospectus or the ML&Co.
Prospectus which is attached to any CIBER preliminary prospectus or the CIBER
Prospectus; and all references in this Agreement to amendments or supplements to
the CIBER Registration Statement, any CIBER preliminary prospectus or the CIBER
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the CIBER Registration Statement, such CIBER
preliminary prospectus or the CIBER Prospectus, as the case may be.
ML&Co. has filed with the Commission a registration statement on Form S-3
(No. 333-28537) for the registration of debt securities, including the
Securities, and warrants under the 1933 Act, and the offering thereof from time
to time in accordance with Rule 415 of the 1933 Act Regulations, and ML&Co. has
filed a preliminary prospectus and preliminary prospectus supplement relating to
the offering of the Securities. Promptly after execution and delivery of the
Purchase Agreement, ML&Co. will either (i) prepare and file a prospectus and
prospectus supplement in accordance with the provisions of paragraph (b) of Rule
424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if ML&Co. has elected to
rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a
term sheet (an "ML&Co. Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such ML&Co. Term Sheet that
was omitted from such registration statement (as so amended) at the time it
became effective but that is deemed to be part of such registration statement
(as so amended) as of the time such information was filed with the Commission
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Any prospectus and prospectus supplement relating to the offering of the
Securities that omitted, as applicable, the Rule 434 Information or other
information to be included in the prospectus and prospectus supplement filed
with the Commission pursuant to Rule 424(b), that was used after such
registration statement (as so amended) became effective and prior to the
execution and delivery of the Purchase Agreement, in each case excluding any
CIBER preliminary prospectus attached thereto, are herein called, collectively,
an "ML&Co. preliminary prospectus." The final prospectus and final prospectus
supplement relating to the offering of the Securities, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, but excluding any CIBER Prospectus attached thereto, in the form first
furnished to the Underwriter for use in connection with the offering of the
Securities are collectively referred to herein as the "ML&Co. Prospectus." If
Rule 434 is relied on, the term "ML&Co. Prospectus" shall refer to the ML&Co.
preliminary prospectus dated January 14, 1998 together with the ML&Co. Term
Sheet. For purposes of this Agreement, all references to any ML&Co. preliminary
prospectus, the ML&Co. Prospectus or any ML&Co. Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to XXXXX.
Prior to the closing under the Purchase Agreement, ML&Co., Xxxxxxx Xxxxx
Mortgage Capital Inc., a wholly owned subsidiary of ML&Co. (the "ML&Co.
Subsidiary"), the Contracting Stockholder and The Bank of New York, as agent and
custodian for and on behalf of the ML&Co. Subsidiary, will enter into a forward
purchase contract (the "Forward Purchase Contract"), pursuant to which the
Contracting Stockholder will agree to sell and the ML&Co. Subsidiary will agree
to purchase, on the business day immediately preceding the maturity date
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of the Securities, the Maturity Consideration (as defined in the Supplemental
Indenture) required by ML&Co. to pay and discharge all of the Securities at
maturity as described in the ML&Co. Prospectus, subject to the Contracting
Stockholder's right to satisfy its obligations thereunder through a cash payment
based on the value of such Maturity Consideration.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to the Underwriter and to ML&Co. as of the date hereof, as of the
Closing Time referred to in Section 2(c) of the Purchase Agreement, and as of
each Date of Delivery (if any) referred to in Section 2(b) of the Purchase
Agreement, and agrees with each of the Underwriter and ML&Co. as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act and no stop order
preventing or suspending the use of any CIBER preliminary prospectus has
been issued by the Commission, and each CIBER preliminary prospectus filed
as part of the CIBER Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations, and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished to the Company in writing
by the Underwriter or ML&Co. expressly for use therein.
Each of the CIBER Registration Statement and any CIBER Rule 462(b)
Registration Statement has become effective under the 1933 Act, and no stop
order suspending the effectiveness of the CIBER Registration Statement or
any CIBER Rule 462(b) Registration Statement has been issued under the 1933
Act and, to the knowledge of the Company, no proceeding for that purpose
has been instituted or threatened by the Commission; and the CIBER
Registration Statement and CIBER Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and do not
and will not, as of the applicable effective date of the CIBER Registration
Statement and any amendment thereto and as of the date of the CIBER
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the CIBER Prospectus, as amended or supplemented at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
4
misleading; except that the foregoing representations and warranties shall
not apply to statements or omissions in the CIBER Registration Statement or
the CIBER Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriter or
ML&Co. expressly for use therein.
(ii) ACCURACY OF EXHIBITS. There are no contracts or other documents
that are required by the 1933 Act or the 1933 Act Regulations to be filed
as exhibits to the CIBER Registration Statement or required to be described
in the CIBER Registration Statement or the CIBER Prospectus that are not
filed or described as required; each contract to which the Company is a
party and to which reference is made in the CIBER Prospectus or which is
filed as an exhibit to the CIBER Registration Statement has been duly and
validly executed by the Company and is in full force and effect in all
material respects in accordance with its respective terms, and none of such
contracts has been assigned by the Company; the Company knows of no present
situation or condition or fact that would prevent compliance in all
material respects with the terms of any of such contracts, as amended to
date.
(iii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the CIBER Registration Statement
and the CIBER Prospectus, when they became effective or at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the CIBER Prospectus, as
of the applicable effective date of the CIBER Registration Statement and
any amendment thereto, as of the date of the CIBER Prospectus and any
amendment or supplement thereto and at the Closing Time (and if any Option
Securities are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iv) INDEPENDENT ACCOUNTANTS. To the knowledge of the Company, KPMG
Peat Marwick LLP, which has certified the financial statements filed with
the Commission as part of the CIBER Registration Statement, are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) FINANCIAL STATEMENTS. The financial statements of the Company
and the related notes thereto included or incorporated by reference in the
CIBER Registration Statement, any CIBER preliminary prospectus and the
CIBER Prospectus, present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations, and their consolidated cash flows for the
periods specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis and present fairly the information required to be
stated therein; the summary consolidated financial data included in the
CIBER Prospectus present fairly the information shown therein; and the pro
forma financial information,
5
included in the CIBER Registration Statement and the CIBER Prospectus, has
been prepared in accordance with the applicable requirements of the 1933
Act and the 1933 Act Regulations and is based upon good faith estimates and
assumptions believed by the Company to be reasonable.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the CIBER Registration Statement
and the CIBER Prospectus, there has not been any material adverse change,
or any development of which the Company is aware that would reasonably be
expected to involve a prospective material adverse change, in or affecting
the business, management, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the CIBER Prospectus; except as set forth or
contemplated in the CIBER Prospectus, neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and its
subsidiaries, taken as a whole.
(vii) GOOD STANDING OF THE COMPANY. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the CIBER Prospectus; and the Company has been
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where
the failure to qualify or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(viii) GOOD STANDING OF SUBSIDIARIES. Each of the Company's
subsidiaries has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, with power
and authority to own its properties and conduct its business as described
in the CIBER Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and all the outstanding shares of capital stock of each subsidiary
of the Company have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except, in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims.
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(ix) CAPITALIZATION. The CIBER Common Stock conforms as to legal
matters to the description of the Company's capital stock contained in the
CIBER Registration Statement on Form 8-A (File No. 0-23488) filed with the
Commission on February 25, 1994 that was incorporated by reference in the
CIBER Prospectus, and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable and are not subject to any preemptive or similar rights to
acquire equity securities of the Company; and, except as described in or
expressly contemplated by the CIBER Prospectus and except for grants
pursuant to existing employee or director benefit plans of CIBER referred
to in the CIBER Prospectus, there are no outstanding rights (including,
without limitation, preemptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or arrangement of any
kind relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options.
(x) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its respective charter
or by-laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries, taken as a whole; the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, except for conflicts or breaches which individually or in the
aggregate are not material to the Company and its subsidiaries, taken as a
whole, nor will any such action result in any violation of the provisions
of the Certificate of Incorporation or the By-Laws of the Company or of the
provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties,
except for violations which individually or in the aggregate are not
material to the Company and its subsidiaries, taken as a whole; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
performance by the Company of its obligations under this Agreement or the
consummation by the Company of the transactions contemplated herein, except
such consents, approvals, authorizations, registrations or qualifications
as have been obtained under the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Act
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Regulations and the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") and the New York Stock Exchange, and as
may be required under the Commodities Exchange Act, the Commodities
Futures Trading Commission Act of 1974, the Commodity Distribution Reform
Act and similar state and federal laws, rules and regulations governing the
issuance, sale and distribution of commodities, or under state securities
or Blue Sky laws, in connection with the purchase and distribution of the
Securities by the Underwriter.
(xii) ABSENCE OF INTER-RELATIONSHIPS. No relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries on
the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries on the other hand,
which is required by the 1933 Act or the 1933 Act Regulations to be
described in the CIBER Registration Statement and the CIBER Prospectus
which is not so described in all material respects in accordance with the
1933 Act and the 1933 Act Regulations.
(xiii) ABSENCE OF PROCEEDINGS. Other than as set forth or
contemplated in the CIBER Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or any of its subsidiaries is or may be
the subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a material
adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, and, to
the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. Except as disclosed in
the CIBER Prospectus, the Company owns, licenses or possesses adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses, inventions, trade secrets and other
proprietary and similar rights necessary for the conduct of its business as
currently conducted.
(xv) COMPLIANCE WITH LAW. Except as disclosed in the CIBER
Prospectus, the business and operations conducted by the Company, as
described in the CIBER Prospectus, are being conducted in compliance in all
material respects with all applicable laws, foreign or domestic, and all
applicable rules and regulations of all public authorities having
jurisdiction over the Company.
(xvi) TITLE TO PROPERTY. The Company and its subsidiaries have
good and marketable title to all real property and good title to all
personal property owned them and used in their business, in each case, free
and clear of all liens, encumbrances and defects except such as (a) are
described or referred to in the CIBER Prospectus or (b) do not materially
affect the value of such property and do not interfere with the use made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, existing
8
and enforceable leases with such exceptions as are not material and do not
interfere with the use made of such property and buildings by the Company
or its subsidiaries.
(xvii) INVESTMENT COMPANY ACT. The Company is not an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
(xviii) REGISTRATION RIGHTS. Other than the registration rights
which have either been fulfilled, do not apply or have been properly
waived, no person has the right to require the Company to register any
securities for offering and sale under the 1933 Act by reason of the filing
of the CIBER Registration Statement with the Commission.
(xix) INSURANCE. The Company maintains insurance of the types and
in the amounts that the Company deems adequate for its business and, to its
knowledge, generally consistent with insurance maintained by similar
companies in similar businesses, including, but not limited to, general
liability insurance, and insurance covering all real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(xx) ACCOUNTING CONTROL. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxi) TAXES. The Company has filed all federal, state, local
and foreign income withholding and franchise tax returns and taxes which
have been required to be filed and has paid all taxes indicated by said
returns and all assessments received by it to the extent that such taxes
and assessments have become due and payable, other than where the failure
to file such tax returns or to pay such taxes or assessments would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole; the Company (i) has paid
all federal, state, local and foreign taxes and assessments that are due
from the Company, including but not limited to withholding taxes and
amounts payable under Chapters 21 through 24 of the Internal Revenue Code
of 1986, as amended (the "Code"), and has furnished all information returns
that the Company is required to furnish pursuant to the Code, except where
the failure to pay such taxes or assessments would not have a material
adverse effect on the Company or its subsidiaries, taken as a whole; (ii)
has established adequate reserves for such taxes which are not due and
payable and that are known to the Company after reasonable inquiry as to
the adequacy of tax reserves, and, (iii) to its knowledge, does not
9
have any tax deficiency or claim outstanding, proposed or assessed against
it, except in each case where the failure to pay such taxes or assessments
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; the Company has not granted any extension
of any statute of limitations to any federal, state, local or foreign tax
authority for any period, nor has the Company requested any extension of
the time for filing any federal, state, local or foreign tax return or
form.
(xxii) STABILIZATION. The Company will not take, directly or
indirectly, any action (and the Company knows of no any action by its
directors, officers or stockholders or by others) designed to or which has
constituted or which might reasonably be expected to cause or result in,
under Regulation M or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities in violation of the 1934 Act.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company (other than the Contracting Stockholder) or any subsidiary and
delivered to the Underwriter or counsel for the Underwriter or to ML&Co. or
counsel for ML&Co. in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company to the Underwriter and to
ML&Co., as the case may be, as to the matters covered thereby.
SECTION 2. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriter and with ML&Co. as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 2(b), will notify the Underwriter and ML&Co.
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the CIBER Registration Statement shall become effective, or any
supplement to the CIBER Prospectus or any amended CIBER Prospectus shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the CIBER Registration
Statement or any amendment or supplement to the CIBER Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the CIBER Registration Statement or of any
order preventing or suspending the use of any CIBER preliminary prospectus or
the CIBER Prospectus, or of the suspension of the qualification of the shares of
CIBER Common Stock deliverable upon payment and discharge of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriter and
ML&Co. notice of its intention to file or prepare any amendment to the CIBER
Registration Statement
10
(including any CIBER Rule 462(b) Registration Statement) or any amendment,
supplement or revision to either the prospectus included in the CIBER
Registration Statement at the time it became effective or to the CIBER
Prospectus, will furnish the Underwriter and ML&Co. with copies of any such
documents a reasonable amount of time under the circumstances prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which counsel for the Underwriter or counsel for ML&Co. shall
reasonably object.
(c) DELIVERY OF CIBER REGISTRATION STATEMENTS. The Company has furnished
or will deliver to each of the Underwriter, counsel for the Underwriter, ML&Co.
and counsel for ML&Co., without charge, one signed copy of the CIBER
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
conformed copies of all consents and certificates of experts.
(d) DELIVERY OF CIBER PROSPECTUSES. The Company has delivered to ML&Co.
and to the Underwriter, without charge, as many copies of each CIBER preliminary
prospectus as ML&Co. and the Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to ML&Co. and the Underwriter, without charge,
during the period when the CIBER Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the CIBER Prospectus (as
amended or supplemented) as ML&Co. and the Underwriter may reasonably request.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in the Purchase Agreement.
If at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities any event shall occur or condition shall
exist as a result of which it is necessary, in the reasonable opinion of counsel
for the Underwriter, counsel for ML&Co. or counsel for the Company, to amend the
CIBER Registration Statement or amend or supplement the CIBER Prospectus in
order to ensure that the CIBER Prospectus will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of any such counsel, at any such time to amend the CIBER
Registration Statement or amend or supplement the CIBER Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
2(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the CIBER Registration Statement or the CIBER Prospectus
comply with such requirements, and the Company will furnish to the Underwriter
and ML&Co. such number of copies of such amendment or supplement as the
Underwriter and ML&Co. may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the shares of CIBER Common Stock
deliverable upon payment and discharge of the Securities for offering and sale
under the applicable securities laws of such
11
states and other jurisdictions (domestic or foreign) as the Underwriter may
reasonably designate and to maintain such qualifications in effect through the
maturity date of the Securities; PROVIDED, HOWEVER, that the Company shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the shares of CIBER Common Stock deliverable upon payment
and discharge of the Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect through the maturity date of the
Securities.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days from
the date of the CIBER Prospectus, the Company will not, without the prior
written consent of the Underwriter, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of CIBER Common Stock or any
securities convertible into or exercisable or exchangeable for shares of CIBER
Common Stock or file any registration statement under the 1933 Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, any
of the economic consequences of ownership of any CIBER Common Stock, whether or
not any such transaction described in clause (i) or (ii) above is to be settled
by delivery of CIBER Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the CIBER Common Stock
deliverable upon payment and discharge of the Securities, (B) any shares of
CIBER Common Stock issued or options to purchase CIBER Common Stock granted
pursuant to existing employee or director benefit plans of the Company referred
to in the CIBER Prospectus, or any shares of CIBER Common Stock issued upon
exercise of options granted pursuant to any such plan, (C) any shares of CIBER
Common Stock issued by the Company upon the exercise of an option (other than an
option referred to in clause (B) above) or warrant or the conversion of a
security outstanding on the date hereof and referred to in the CIBER Prospectus
and (D) shares of CIBER Common Stock or options to purchase shares of CIBER
Common Stock issued in connection with business combinations, provided that the
number of shares so issued, together with the number of shares issuable upon the
exercise of the options so issued, does not exceed in the aggregate 3.5 million.
(i) REPORTING REQUIREMENTS. The Company, during the period when the CIBER
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
12
SECTION 3. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the CIBER Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the fees and disbursements of the Company's counsel, accountants
and other advisors, (iii) the qualification of the shares of CIBER Common Stock
deliverable upon payment and discharge of the Securities under securities laws
in accordance with the provisions of Section 2(f) hereof, including filing fees
and the reasonable and accountable fees and disbursements of counsel for the
Underwriter in connection therewith, (iv) the printing and delivery to the
Underwriter and ML&Co. of copies of each CIBER preliminary prospectus and of the
CIBER Prospectus and any amendments or supplements thereto, (v) the preparation
and delivery to the Underwriter of copies of the Blue Sky Survey and any
supplement thereto, (vi) the fees and expenses of any transfer agent or
registrar for the CIBER Common Stock, and (vii) the filing fees incident to the
review by the NASD of the terms of the offering and sale of the shares of CIBER
Common Stock deliverable upon payment and discharge of the Securities.
(b) ALLOCATION OF EXPENSES. The provisions of this Section 3 shall not
affect any separate agreement that the Company and the Contracting Stockholder
may make or may have made for the sharing of such costs and expenses.
SECTION 4. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITER AND ML&CO. Subject to the last
paragraph of this Section 4(a), the Company agrees to indemnify and hold
harmless (1) the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and (2) ML&Co. and each person, if any, who controls ML&Co. within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as
follows:
(i) subject to subsection (c) below, against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the CIBER Registration Statement (or any amendment thereto) or
the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any CIBER preliminary prospectus
or the CIBER Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body,
13
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, referred to under (i) above; PROVIDED that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) subject to subsection (c) below, against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel
chosen by the Underwriter or ML&Co., as the case may be), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
referred to under (i) above, to the extent that any such expense is not
paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (A) written information furnished to the Company
by the Underwriter expressly for use in the CIBER Registration Statement (or
any amendment thereto), or any CIBER preliminary prospectus or the CIBER
Prospectus (or any amendment or supplement thereto) or (B) written information
furnished to the Company by ML&Co. expressly for use in the CIBER Registration
Statement (or any amendment thereto), or any CIBER preliminary prospectus or
the CIBER Prospectus (or any amendment or supplement thereto); PROVIDED,
FURTHER, HOWEVER, that the foregoing indemnity with respect to any untrue
statement contained in or omission from a CIBER preliminary prospectus shall
not inure to the benefit of the Underwriter (or to the benefit of any person
controlling the Underwriter) if such untrue statement contained in or omission
from the CIBER preliminary prospectus was eliminated or remedied in the CIBER
Prospectus (as amended or supplemented if the Company shall have furnished to
the Underwriter any amendments or supplements thereto) and, if required by
law, a copy of the CIBER Prospectus (as amended or supplemented if the Company
shall have furnished to the Underwriter any amendments or supplements thereto)
shall not have been furnished to such person asserting any such loss,
liability, claim, damage or expense at or prior to the written confirmation of
the sale of the Securities which are the subject thereof to such person.
In the event that any claim for indemnification under (i), (ii) or (iii)
above or contribution under Section 5 hereof is made against the Company and
such indemnified parties seek indemnification or contribution hereunder against
any loss, liability, monetary claim, damage or expense then due and owing
arising out of any untrue statement or omission, or alleged untrue statement or
omission, referred to under (i) above (each such circumstance or event, a
"Loss") such indemnified parties shall first seek to satisfy the Loss in full
from the Contracting Stockholder by making a written demand upon the Contracting
Stockholder for satisfaction of such Loss pursuant to Section 6(b) of the
Purchase Agreement, and shall copy the Company on each such written demand.
Only if such Loss shall remain unsatisfied in whole or in part 45 days following
the date of receipt by the Company of the relevant demand shall any such
indemnified party have the right to take action to satisfy such Loss by making
demand directly on the Company (but only if and to the extent that the
Contracting Stockholder has not already satisfied
14
(and does not thereafter satisfy) such Loss, whether by settlement, release or
otherwise). The indemnified parties shall, however, be relieved of their
obligation to first seek to satisfy a Loss in full from the Contracting
Stockholder or, having sought to satisfy such Loss from the Contracting
Stockholder, to wait such 45 days after failure by the Contracting Stockholder
to satisfy such Loss if (i) the Contracting Stockholder shall commence a
voluntary case or other proceeding seeking relief with respect to himself or his
debts under title 11 of the United States Code (the "Bankruptcy Code") or any
other bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, custodian or other similar
official of his property or any substantial part of his property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against him;
(ii) all or substantially all of the Contracting Stockholder's assets shall
become subject to the jurisdiction of a bankruptcy court; (iii) an order for
relief or similar decree shall be entered against the Contracting Stockholder
under the Bankruptcy Code or any other bankruptcy, insolvency or other similar
law now or hereafter in effect; (iv) any court orders or approves the
appointment of a trustee, receiver, custodian or other similar official of the
Contracting Stockholder's property or any substantial part of his property; (v)
the Contracting Stockholder makes a general assignment for the benefit of its
creditors, (vi) the Contracting Stockholder dies or is declared incompetent or
of unsound mind (by appropriate authority) or shall for any other reason cease
to act as trustee of the Xxxxx X. Xxxxxxxxx 1998 Revocable Trust; or (vii) the
Contracting Stockholder shall, without the prior written consent of the ML&Co.
Subsidiary, amend, modify or revoke the Xxxxx X. Xxxxxxxxx 1998 Revocable Trust
or transfer the situs of administration thereof or change the governing law
applicable thereto in a manner that materially and adversely affects the
indemnified party's ability to pursue a claim agianst the Contracting
Stockholder.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the CIBER Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, to the same extent as the foregoing indemnity from
the Company to the Underwriter and ML&Co., but only with reference to written
information furnished by the Underwriter or ML&Co., as the case may be,
expressly for use in the CIBER Registration Statement (or any amendment
thereto), or any CIBER preliminary prospectus or the CIBER Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand commenced or asserted against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Upon receipt of such notice, the
indemnifying party, severally or jointly with any other indemnifying parties
receiving such notice, shall retain counsel reasonably satisfactory to such
indemnified party to represent such indemnified party and any others the
indemnifying party may designate in respect of such suit, action, proceeding,
claim or demand. In respect of any such suit, action, proceeding, claim or
demand, an indemnified party shall have the right to retain its
15
own counsel, but the fees and disbursements of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying parties and such
indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying parties have failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party or (iii) the named parties in
any such suit, action or proceeding (including any impleaded parties) include
both indemnifying parties and indemnified parties and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 or Section 5 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 4(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement for all such fees and expenses of counsel, other than such fees and
expenses of counsel which are being contested in good faith by the indemnifying
party.
SECTION 5. CONTRIBUTION. If the indemnification provided for in
Section 4 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then, subject to the last paragraph
of Section 4(a) hereof, the Company on the one hand and the Underwriter and
ML&Co. on the other hand shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter
and ML&Co. on the other hand from the offering of the Securities pursuant to
the Purchase Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriter and
ML&Co. on the other
16
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the offering of the Securities pursuant
to the Purchase Agreement shall be deemed to be such that the Underwriter and
ML&Co. shall be responsible for that portion of the aggregate amount of such
losses, liabilities, claims, damages and expenses represented by the percentage
that the total underwriting discount received by the Underwriter, as set forth
on the cover of ML&Co. Prospectus, or, if Rule 434 is used, the corresponding
location on the ML&Co. Term Sheet, bears to the aggregate initial public
offering price of the Securities as set forth on such cover and the Company
shall be responsible for the balance.
The relative fault of the Company on the one hand and the Underwriter and
ML&Co. on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Contracting Stockholder on the one hand or by the
Underwriter or ML&Co. on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Underwriter and ML&Co. agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 5. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 5 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, the Underwriter and
ML&Co. shall not be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by the Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriter and ML&Co. have otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter; each
person, if any, who controls ML&Co. within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as ML&Co.;
17
and each director of the Company, each officer of the Company who signed the
CIBER Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company (other than
the Contracting Stockholder) submitted pursuant to the Purchase Agreement,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person
thereof, or by or on behalf of ML&Co. or controlling person thereof or by or
on behalf of the Company, and shall survive delivery of the Securities to the
Underwriter pursuant to the Purchase Agreement.
SECTION 7. TERMINATION. In the event that the Underwriter terminates
the Purchase Agreement as provided in Section 5 or Section 9 thereof, this
Agreement shall simultaneously terminate, except that the provisions of Section
3, the indemnity agreements set forth in Section 4, the contribution provisions
set forth in Section 5, and the provisions of Section 6 shall remain in effect.
SECTION 8. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx,
Xxxxxxxxxx 00000, attention of Xxxxxx X. Xxxxxxxxxx; notices to ML&Co. shall be
directed to Xxxxxxx Xxxxx & Co., Inc., 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of the Secretary; notices to the Company shall be
directed to CIBER, Inc., XXX Xxxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000.
SECTION 9. PARTIES. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriter, ML&Co. and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, ML&Co. and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 4 and
5 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriter, ML&Co. and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18
SECTION 11. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriter, ML&Co. and the Company in accordance with its terms.
Very truly yours,
CIBER, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------
Authorized Signatory
XXXXXXX XXXXX & CO., INC.
By:
----------------------------
Name:
Title:
20
